[2017] KEHC 521 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

SUCCESSION CAUSE NO.34 OF 2015

IN THE MATTER OF THE ESTATE OF THE LATE KIPSANG

ARAP RUGUT alias KIPSANG A. RUGUT (DECEASED)

JOHN KIPKORIR RONOH.......PROTESTER/APPLICANT

VERSUS

MARY CHEPKEMEI RUGUT...............................RESPONDENT

RULING

1. These proceedings relate to the estate of Kipsang Arap Rugut aliasKipsang A. Rugut (deceased), who died intestate on the 20th of June 1997. The deceased was survived by the following beneficiaries:

i. Esther C. Chemwolo

ii. Mary Chepkemei Rugut

iii. Susan Cherono Ngetich

iv. Geoffrey Rotich, a son of his daughter,Tabutany Cherotich Langat (deceased)

v. Philip Ruto, a son of his daughter, Tabelga Chepkurui Kalya (deceased)

vi. John Rono, a son of his son, Michael Kiprono Sang (deceased)

2. An application for grant of letters of administration intestate to the estate of the deceased was made on 11th August 2014 by Mary Chepkemei Rugut. In form P&A 5 dated 11th August 2014, she indicates the beneficiaries as the deceased widow, Grace Cherono Tamigin, Tabutany Cherotich Langat (deceased), Tabelga Chepkurui (deceased), Michael Kiprono Sang (deceased), Esther C. Chemwolo, Mary Chepkemei Rugut and Susan Cherono Rugut. The sole asset of the estate is Kericho/Kapsuser/148. Letters of administration intestate were duly issued to Mary Chepkemei Rugut by the court on 30th June 2015.

3. The petitioner thereafter filed summons for confirmation of grant dated 11th January 2016. In the affidavit in support of the application, the petitioner proposed that the estate of the deceased be distributed among the beneficiaries as follows:

1. Esther C. Chemwolo 3 acres

2. Mary Chepkemei Rugut 4. 27 acres

3. Susan Cherono Ngetich 3 acres

4. Geoffrey Kibet Rotich (in place of Tabutany Cherotich Langat (daughter deceased) 3 acres

5. Philip Ruto in place of Tabelga Chepkurui (daughter deceased) 3 acres

6. John Rono in place of Micheal Kiprono Sang (son, deceased) 3 acres

4. The grant was duly confirmed on 10th March 2016, Ong’udi J having noted that no objection had been raised to the confirmation. A certificate of confirmation of grant was duly issued.

5. By an application dated 30th May 2016, John Rono filed an application seeking revocation of the grant. The application was based on the grounds that the proceedings to obtain the certificate of confirmation were defective in substance, and that it was obtained without consent by all the parties, or by concealment from the court of something material to the case.

6. In his affidavit sworn on 30th May 2016 in support of the application, the applicant avers that the grant should be revoked as notice for the said grant has neither been published nor brought to the attention of all persons beneficially entitled to allow them file objections. He further contends that it should be cancelled as there was non-disclosure of the 8 acres tea plantation which allegedly belongs to undisclosed beneficiaries.

7. In his statement dated 20th February 2017, the applicant avers that his grandfather, the deceased, had allocated to his father, the only son of the deceased, 6 acres of a tea plantation. He contends that his aunts, daughters of the deceased, are already married and expect to benefit from their husbands.

8. The applicant further alleges that Geoffrey Kibet is not a beneficiary as he is the son of one of the daughters of the deceased, Tabutany Cherotich, who had been married off. In his view, Geoffrey should benefit from his father’s land. He contends with regard to Philip Rutto that he is the son of Reverend Kalya and since he is an only son, the law of succession does not recognize his stake in the property of the deceased.

9. The applicant asks the court to allocate to the family of the late Michael Sang, his father, the tea plantation on 6 acres of land. He alleges that his grandfather had, in consideration of the fact that his father was the only son, allocated the 6 acres to him. The remainder of the property, 12. 5 acres in total, can then be allocated to the remaining beneficiaries.

10. I have considered the record of the court and the pleadings and submissions of the parties in this matter. I note that the land comprising the estate of the deceased, as evidenced in the certificate of official search dated 29th October 2014 annexed to the application for grant of letters of administration intestate, shows that the land measures approximately 7. 8 ha or 19. 2 acres.

11. At the core of the applicant’s complaint is his belief that as the son or family of the only son of the deceased, he and his family have a superior claim to the estate of the deceased. He reiterates in his written submissions dated 2nd May 2017 that his father had been allocated 6 acres out of the 19. 2 acres of land to develop a tea plantation to benefit the 5 grandsons of the deceased. This was done, according to the applicant, on the basis that his father was the only son and his sisters were already married.

12. According to the applicant, it would be illegal and unacceptable to permit the married daughters and the “poached grandsons of the deceased from the deceased daughters” to get a share in the deceased’s property as they were allegedly well settled elsewhere. He maintains that the grandsons of the deceased who have been allocated shares in the estate of the deceased are not entitled to benefit as they are grandsons from daughters of the deceased who had got married and they were therefore entitled to property from their (own) father(s).

13. In response, the respondent filed submissions dated 12th May 2017. The respondent refers in her submissions to a replying affidavit sworn on 21st June 2016, though this affidavit is not in the court record. She states in her submissions that the proper procedure was followed in obtaining the grant and confirmation thereof. She also terms the assertion by the applicant that she, her sisters and the children of other deceased daughters of the deceased are not entitled to a share of the deceased’s property a contravention of Article 27 (3) of the Constitution as well as sections 35, 38 and 40 of the Law of Succession Act. Her submission is that the law does not discriminate against children on the basis of gender or marital status.

14. It was the respondent’s further submission that the applicant had not established any of the grounds for revocation of grant set out under section 76 of the Law of Succession Act.

15. The matter before me requires consideration of the question whether the court should revoke the grant in this matter on the basis that it was not issued as required under the provisions of the Law of Succession Act. Section 76 of the Law of Succession Act provides as follows with respect to revocation of grants:

“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—

i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow;

or

ii) to proceed diligently with the administration of the estate; or

iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or (e) that the grant has become useless and inoperative through subsequent circumstance.

16. I have considered the record of the court with respect to the process followed in obtaining the grant in this matter. I note that the requisite forms were filed by the applicant, and included a consent signed by her two surviving sisters, Esther Chemwolo and Susan Cherono Ngetich. As the children of the deceased, in accordance with section 66 of the Law of Succession Act, they had the right to apply, but consented to their sister so applying. As grandchildren of the deceased, the applicant and his brothers and sisters or cousins could not rank in priority over their aunts.

17. Secondly, I have noted that in accordance with the requirements of the Law of Succession Act, the application for grant was duly gazetted in Gazette Notice No. 3085 published on 30th April 2015. The purpose of this notice is to give an opportunity to any party who wishes to object to the grant of letters of administration intestate to the applicant to file an objection. The grant was issued to the petitioner on the basis that no objections to the application had been lodged.

18. The applicant is also aggrieved that the grant was made without notice to him. However, Rule 26 (1) of the Probate and Administration Rules provides as follows:

1. Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.(Emphasis added)

19. Under section 66 of the Law of Succession Act, the respondent and her sisters are entitled in the same degree. They rank in priority to the applicant, who is a grandson of the deceased. Section 66 gives the court a final discretion as to the person or persons to whom a grant of letters of administration should be made, in the best interests of all concerned. It however provides that as a general guide, priority shall be given to the widow (or widower) of a deceased person, followed by children of the deceased. A grant may be made to other relatives of a deceased person, or to the public trustee or creditors, but there would need to be good reason for this. In the present case, three children of the deceased were alive and able; one applied and two consented to the issue of the grant. In the circumstances, I can see no basis for complaint about the process of application.

20. What problem, exactly, does the applicant in this matter have? Having read the pleadings and submissions in this matter, I believe that the applicant is aggrieved, in reality, about the mode of distribution. In his view, his family, as the family of the only son of the deceased, has a greater right. His cousins, sons of the daughters of the deceased, are ‘poached’ grandsons of the deceased. It is not clear what this word is intended to mean in this context, but it certainly conveys deep disdain for the children of daughters of the deceased. He is also of the view that the respondent and her sisters, despite being children of the deceased, have a lesser claim than he does, as he and his family are the issue of the only son of the deceased.

21. The averments and submissions of the applicant have no basis in law, and they ran afoul of the Constitution also. Article 27 of the Constitution prohibits discrimination on any basis. The applicant cannot be heard to say that his aunts or cousins should have a lesser claim because they are women, or married, or are the children of daughters, rather than sons, of the deceased. To discriminate against anyone on the basis of gender or marital status is clearly prohibited. It surprises the court that an Advocate, an officer of the court, can actually file such submissions on behalf of his client.

22. Additionally, section 38 of the Law of Succession Act is clear on the manner in which the property of a deceased person who has not left a surviving spouse should be distributed. It provides that the net intestate estate shall devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children. The surviving children of the deceased in this case are the respondent and her sisters. Their brother, the father of the applicant, is deceased. Under section 41 of the Law of Succession Act, where the child or children of a deceased person were themselves deceased but had left children, these children stand in place of their deceased parents and are entitled to the share their parent was entitled to. In his decision in the Estate of Joseph Gichuki Riunge (Deceased) [2016] eKLR, Musyoka J stated as follows:

“…should the child be survived by their own children, who would then be grandchildren of the dead parent, then it should be the children of the dead child, the grandchildren of the dead parent, who would be considered as the survivors of the parent of their own parent. That is the effect of section 41 of the Law of Succession Act. It is called the principle of representation: the surviving child of a dead child taking the share of their dead parent from estate of the dead child’s parent”.

23. The applicant and his siblings are therefore entitled to their father’s share of the deceased’s estate. The applicant, however, seems to be of the view that he and his siblings should have a larger share of the deceased’s estate because they are many, five sons in all. He does not say whether there are any girls in the family of the late Michael Sang. He submits that the confirmation of the grant in the terms that it was did not give equitable consideration to the interests of the five beneficiaries who were sons of Michael Sang, who had already been allocated land by their grandfather. Nothing was placed before the court to show that any such allocation had taken place.

24. As noted above, under section 38 of the Law of Succession Act, where the deceased left no surviving spouse, his estate is to be distributed equally between the surviving children. Each child gets an equal share of the estate, regardless of the number of children, or wives, he has. Under the law, the grandchildren of a deceased person have a right to their father’s (or mother’s) share of his estate, no more. The fact that the son of the deceased, Michael Sang, had five sons does not entitle them to a greater share of the estate than their father was entitled to. This submission by the applicant therefore has no basis.

25. In the circumstances, I find no merit in the application for revocation of grant dated 30th May 2016. It is therefore dismissed, but with no order as to costs.

Dated, Delivered and Signed at Kericho this 1st day of November 2017.

MUMBI NGUGI

JUDGE